Whose Court Is It, Anyway?

Once again, the entire country’s eyes – or rather, its ears – were on the Supreme Court this week as the court heard arguments over same-sex marriage.

A few hardy souls had a chance to see the arguments after camping out for days to secure a seat. Some lucky ones with connections (including, apparently, the chief justice’s cousin) were invited into the warm courtroom to look on without the long wait.

As for the other 310 million interested Americans, their eyes were not much use. The court’s default position – no live coverage and no video coverage at all – means that the American people cannot look on electronically. By the court’s good graces, we were allowed to listen to an audio recording, though only after the day’s arguments were concluded.

This is not good enough. Not even close. Last year, when the nation’s attention was on the high court as it decided a challenge to health care reform, I discussed the position and expressed the deep flaws in keeping the public out of its judiciary system. Nor is it only the Supreme Court keeping cameras out. Back when Hollingsworth v. Perry was Perry v. Schwarzenegger, the federal court that reviewed the case allowed cameras but not a broadcast.

While it would be wrong for a president and the Senate to establish a litmus test for potential justices based on a pending legal question, there would be absolutely nothing wrong with extracting a pledge from any and all future Supreme Court nominees that they would support live broadcast and Internet transmission of all proceedings that occurred in open court. Ideally this would apply to all federal courtrooms (with appropriate provision to protect witnesses at trial when needed), but certainly at the appellate level, where the arguments deal with matters of law. We need only the narrowest exceptions for issues of national security.

Of the nine justices, only Elena Kagan and Sonia Sotomayor have spoken firmly in favor of letting the public see the high court’s proceedings – but Sotomayor has since rethought her position, and Kagan is now hedging her former opinion too. The others either oppose it or choose to remain noncommittal, ensuring the negative voices continue to prevail.

The nine individuals who think they own the court by virtue of their lifetime appointments believe we have no right to look on via video feed. The argument that the layperson would not understand or find the proceedings interesting rings hollow; C-SPAN coverage of the legislative branch is a given today, and other countries, such as the U.K. and Canada, record and broadcast similar levels of their judicial process with no notable ill effects. State-level appellate courts have experimented with cameras in the courtroom for years.

Further, to turn around and argue that lawyers or justices might play to the cameras seems odd, if you contend that no one will be watching anyway. People can already listen to arguments; presumably the parties involved know they have a large audience, at least with high profile cases like those heard this week.

In the end, it’s our court, not the justices’. The brethren seem to assume the burden rests with those who would bring cameras into the courtroom, rather than those who would keep them out. But this issue is not a matter of separation of powers. It is a matter of the people claiming ownership and jurisdiction of all three branches of our government. Every justice who opposes such access is wrong.

It will take time, but we can, and should, end this nonsense about being shut out of our own highest court.

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